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09/02/94 MARGARET ADKISON AND WILLIE ADKISON v.

September 2, 1994

MARGARET ADKISON AND WILLIE ADKISON
v.
LOWELL THOMPSON, INDIVIDUALLY AND D/B/A JUST FRIENDS



Appeal from Henry Circuit Court. (CV-92-059). Denny Holloway, TRIAL JUDGE.

As Corrected September 16, 1994. Second Revision October 13, 1994. Rehearing Overruled October 21, 1994, . As Modified on Denial of Rehearing October 21, 1994. Released for Publication February 10, 1995.

Steagall, Shores, Houston, and Kennedy, JJ., concur. Almon, J., concurs in the result. Hornsby, C. J., and Ingram, J., concur in part and Dissent in part.

The opinion of the court was delivered by: Steagall

STEAGALL, JUSTICE.

This is an appeal of a summary judgment entered in favor of the defendant Lowell Thompson, individually and doing business as Just Friends nightclub, in an action that followed the death of Gregory Earl Adkison, a minor. We affirm in part; reverse in part; and remand.

I.

During the evening of August 10, 1990, Gregory Earl Adkison, a 20-year-old minor, was served one or more beers at the Just Friends nightclub owned by Lowell Thompson. According to the deposition testimony of one the nightclub's waitresses, Gregory had previously presented to Thompson as proof of his majority a birth certificate in the name of Robert Christopher Adkison, and Thompson had had the nightclub issue Adkison a membership card showing he was age 21 or older, even though Gregory had admitted that the name he used, Greg, was not the name on the birth certificate.

On that evening, Gregory had driven his motorcycle to the Just Friends nightclub. The deposition testimony of witnesses who were present at the nightclub on that evening is conflicting with regard to when Gregory arrived and when he left. He may have arrived at Just Friends as early as 8:00 p.m., and he may have left as early as 9:30 p.m. or as late as 11:00 p.m. The witnesses agree that although Gregory may have consumed one or more beers at Just Friends, they did not consider him to be visibly intoxicated. One witness testified that when Gregory left Just Friends, he told her that he intended to go to Cowboy's, another nightclub.

At some time between the early morning and noon on August 11, 1990, Gregory lost control of his motorcycle on a Henry County highway and was killed. His burned body was discovered at noon next to his smoldering motorcycle. His death was caused by severe trauma to his brain, not by the fire. An autopsy performed by the state medical examiner found that at the time of his death Gregory's blood alcohol level was 0.17%.

On August 11, 1992, Gregory's mother, Margaret Adkison, filed a complaint against Lowell Thompson and "Best Friends" nightclub, although Thompson's nightclub was actually named "Just Friends." The complaint alleged that before Gregory's death, Thompson had illegally served alcoholic beverages to him, a minor, and that as a result he became so intoxicated that he "wrecked his motor vehicle and was caused to die." The complaint was later amended to substitute as defendant, "Lowell Thompson, individually and d/b/a Just Friends."

On December 7, 1993, the plaintiff moved the court to allow the complaint to be amended to substitute Margaret Adkison and Willie Adkison (Gregory's father) as plaintiffs in place of "Margaret Adkison, as administratrix of the estate of Gregory Earl Adkison, deceased." This motion was opposed by Thompson, and the parties disagree as to whether the trial court granted this motion. On December 16, 1993, the trial court entered a summary judgment in favor of Thompson. The first sentence of the trial Judge's summary judgment order stated: "Plaintiff's Motion to Amend is hereby granted." The style of the case on the order listed the plaintiff as "Margaret Adkison, as administratrix of the estate of Gregory Earl Adkison, deceased." The style of the case was modified on a later trial court order.

On January 26, 1994, Margaret Adkison and Willie Adkison filed a notice of appeal. They contend that the trial court erred in entering the summary judgment on the claims raised under Ala. Code 1975, § 6-5-70, the "Civil Damages Act," and § 6-5-71, the "Dram Shop Act." The notice of appeal listed the appellants as "Margaret Adkison and Willie Adkison." On February 2, 1994, Margaret Adkison and Willie Adkison moved the trial court to correct the record on appeal to note that the trial court had granted the motion to substitute plaintiffs. Thompson opposed the motion and also filed a motion objecting to the appellants' notation on the docketing statement and notice of appeal indicating that claims had been brought under §§ 6-5-70 and -71.

On March 30, 1994, the appellants filed a second motion to correct the record on appeal, asking the trial court to include in the record the affidavit of a witness not previously known to the appellants. On April 14, 1994, the trial court granted the motion to include the affidavit in the record; the style of the case on that court order named "Willie Adkison & Margaret Adkison" as plaintiffs.

II.

The appellants contend that the August 11, 1992, complaint alleged claims under §§ 6-5-70 and -71, even though those statutory provisions were not mentioned in the complaint, because, they argue, the facts that were alleged in the complaint amounted to violations of those statutes. In response, Thompson makes three arguments. First, he argues that the complaint merely stated common law negligence and wantonness claims and that the appellants should not be allowed to raise claims on appeal that were not raised before, and decided by, the trial court. Second, Thompson argues that the complaint was not properly amended to substitute Margaret Adkison and Willie Adkison as plaintiffs in place of Margaret Adkison, who had sued as representative of Gregory Adkison's estate, and, thus, that the complaint does not state an action under which relief can be granted because, Thompson contends, the estate of the intoxicated person cannot maintain actions under §§ 6-5-70 or -71. Third, Thompson ...


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